news A document published by Wikileaks appearing to be a US diplomatic cable appears to have revealed much of the previously hidden background behind the iiNet/AFACT court case, including the Motion Picture Association of America’s prime mover role and US Embassy fears the trial could become portrayed as “giant American bullies versus little Aussie battlers”.
The case, which is expected to shortly be escalated to the High Court following a second appeal, has since November 2008 seen a local organisation known as the Australian Federation Against Copyright Theft (AFACT) squaring off against local ISP iiNet, over alleged copyright infringement over file-sharing networks like BitTorrent by iiNet’s customers.
AFACT is known to represent a number of US-based movie studios in the case, including Walt Disney Pictures, for example, as well as industry associations such as the Motion Picture Association of America and local companies such as the Seven Network.
However, this week Wikileaks published what appeared to be a leaked cable sent from the US Embassy in Canberra (under the name of then-US Ambassador Robert McCallum) to a number of US Government diplomatic branches on 30 November 2008, revealing what appeared to be further details of the case. The cable, seen by Delimiter, claims that although the case against iiNet was filed by a number of local and US content owners and distributors, the prime mover behind it was the MPAA, which has been active in copyright enforcement in the US.
The relative governments which have suffered leaks under the Wikileaks case have repeatedly declined to comment on the substance of the cables leaked over the past year, although they are believed to be genuine. AFACT and iiNet have been contacted tonight for a response to the leaked cable.
An executive from the MPAA, the cable claimed, had briefed the US Ambassador on the matter, confirming it was the mover behind the case, with AFACT essentially functioning as a sub-contractor to the MPAA in the matter and the MPAA having no formal presence in Australia. However, the cable claimed that the MPAA would prefer its role not be made public.
“AFACT and MPAA worked hard to get Village Roadshow and the Seven Network to agree to be the public Australian faces on the case to make it clear there are Australian equities at stake, and this isn’t just Hollywood “bullying some poor little Australian ISP,” the cable quoted the US Embassy as writing.
iiNet, the cable claimed, had been targeted because the ISP was “big enough to be important”, as the third-largest ISP in Australia. The MPAA didn’t go after Telstra, the cable claimed, because the telco was “the big guns” and had “the financial resources and demonstrated willingness to fight hard and dirty, in court and out”. In addition, iiNet users had a particularly high copyright violation rate, the cable claimed, and its management had been “consistently unhelpful on copyright infringements”.
The cable also claims that the MPAA believed its case against iiNet to be very strong, as the organisation had delivered a significant chunk of evidence to the ISP revealing copyright violations on the part of its users. However, the ISP did “nothing” to address the issue.
Consequently, to prosecute the case, according to the document, AFACT hired “Australia’s top copyright lawyer” from specialist IP/IT law firm Gilbert & Tobin — a lawyer with experience in previous copyright infringement cases in Australia.
And Communications Minister Stephen Conroy was also consulted, according to the document, with the MPAA speaking with the Labor Senator a few months before the case. At the time, Conroy stated that he had “other priorities” such as the National Broadband Network policy. The MPAA, according to the cable, did not see any role for the US Embassy in that context at that time, but wanted to keep it informed of developments.
In addition, according to the cable, the MPAA saw the iiNet case as potentially “not necessarily their final legal move” in Australia with respect to the issue of online copyright infringement. Although the iiNet case has not yet been concluded in the High Court, AFACT has this year begun again reaching out to Australian ISPs to attempt a dialogue on the issue of copyright infringement.
The US Embassy, according to the document, noted that Australia had “very high rates of illegal movie and television show downloads”, in part because of “the sometimes long gaps between their release in the US and their arrival in Australian theaters or on local television”. The Australian legal action could be followed up by similar moves in other Commonwealth countries, according to the cable.
The US Embassy, according to the document, concluded its report on the issue by noting it would watch the case closely — both for its intellectual property rights implications, as well as “to see whether or not the “AFACT vs the local ISP” featured attraction spawns a “giant American bullies vs little Aussie battlers” sequel”.
If the details in the cable are correct, and bear in the mind that they represent the US Ambassador’s interpretation of what the cable says he was told by the MPAA, they would certainly be consistent with many of the guesses which observers of the iiNet versus AFACT case have already made.
It seems very likely — with its key role in this area in the US — that it is indeed the MPAA that is the prime mover behind AFACT, and the trial itself, and that Telstra and SingTel-backed Optus were targets too big for the organisation to go after in Australia. Secondly, it is true that AFACT has been relatively confident of its case against iiNet all the way throughout the trial in Australia’s Federal Court — and still remains quite confident going into its High Court appeal.
It remains true, of course, that there are definitely two sides to the iiTrial. iiNet has a very valid point with respect to its right to not be held accountable for the actions of its users — as the builders of a road would not be held responsible for stolen goods shipped on that road. However, AFACT also has a point — under current copyright law it is illegal to simply download movies via BitTorrent, and targeting ISPs like iiNet would appear to be one effective way to attempt to have that law enforced.
However, there is also the court of public opinion — the public which consumes the content which the studios own and companies like the Seven Network distribute in Australia.
I would bet that the publication of this cable will not aid the case of AFACT and the MPAA in wooing that public opinion. As the cable notes, one of the underlying issues beneath copyright infringement in Australia remains the reluctance by some parties to release their content locally at the same time as the US. I suspect that if that issue was resolved, and online distribution centres such as Hulu extended to Australia, much of the online copyright infringement problem would disappear.
iiNet, and other ISPs, are certainly currently attempting to push the film and TV studios down this path with the release of IPTV offerings.
Image credit: Delimiter